This testimony discusses the three routes to federal recognition of Indian tribes: legislative, administrative, and judicial. It provides examples of tribes being recognized through each method and discusses some of the inconsistencies and issues with the current administrative process overseen by the Department of Interior. The testimony advocates that all three methods - legislative, administrative, and judicial - continue to be used for recognition and that the Department of Interior adopt a more consistent and progressive approach when evaluating evidence of tribal status and history.

1. TESTIMONY OF MICHAEL J. ANDERSON
ANDERSON INDIAN LAW
Submitted To The
UNITED STATES SENATE COMMITTEE ON INDIAN AFFAIRS
For
“Oversight Hearing on Federal Recognition: Political and Legal Relationship between
Governments”
Thursday, July 12, 2012
Chairman Akaka, Vice Chairman Barrasso, and honorable members of the Senate
Committee on Indian Affairs, good afternoon and thank you for the opportunity to testify on the
federal recognition process. My name is Michael Anderson, and I am the owner of Anderson
Indian Law and a member of the Muscogee (Creek) Nation. I have practiced law for twenty-eight
years, and served for the past ten years as outside legal counsel to more than two dozen American
Indian tribal governments. Before that, I served for eight years in the Clinton Administration at
the United States Department of the Interior as Associate Solicitor for Indian Affairs and as
Deputy Assistant Secretary for Indian Affairs.
I. SUMMARY
My testimony will discuss the three routes to federal recognition of Indian tribes:
legislative, administrative, and judicial. Congress, in the Federal List Act, has recognized that
tribes can be recognized through legislation, administrative procedures, and by court decisions.1
Each of these methods must continue to be utilized. I will also discuss the inconsistent approach in
recent Department of Interior policy with respect to its progressive interpretation of the evidence
for determining whether a tribe meets the standard for “under federal jurisdiction” in land into
trust matters versus its regressive interpretation of whether a tribe meets recognition criteria.
A. Legislative
• Congress recognizes tribes based on its authority under the United States Constitution.
• The United States can and has enacted legislation to recognize tribes.
• Congressional recognition is difficult for tribes because it is a political process, and, in
particular, on the Senate side subject to potential filibuster roadblocks. Indeed, without the
filibuster problem, perhaps a half dozen tribes or more could be recognized by Congress
this session.
• The last Tribe to be recognized by Congress was over 10 years ago in 2000, the Shawnee
Tribe of Oklahoma (Loyal Shawnee).
1
FEDERALLY RECOGNIZED INDIAN TRIBE LIST ACT OF 1994, PL 103–454, November 2, 1994, 108 Stat
4791.

2. Page 2 of 8
B. Administrative
• The Department of Interior recognizes tribes through the Federal Acknowledgment
Process in the federal regulations at 25 C.F.R. Part 83.
• This process is lengthy, inconsistent, and expensive for tribes.
• Tribes can also organize under the Indian Reorganization Act’s half-blood provision.
• A limited number of tribes that were recognized and mistakenly omitted from the list of
federally recognized tribes also have been reaffirmed through administrative error
correction. This occurs when tribes whose government-to-government relationship was
never severed, lapsed, or administratively terminated are administratively reaffirmed and
placed on the list of recognized tribes.
C. Judicial
• The U.S. Supreme Court developed common law standards for federal recognition in the
1901 case Montoya v. U.S.2
• For example, the Shinnecock Nation was recognized by a federal court using the Montoya
standards, although that decision was appealed.
• While courts have been reluctant to step in to matters of federal recognition, they have the
authority to do so.
• For example, after the federal government failed to live up to its obligations under the
California Rancheria Act, a group of California tribes were judicially restored in the Tillie
Hardwick and Scotts Valley cases, among others.
D. Administrative Policy
• The Department of Interior lacks a consistent approach to federal recognition.
• The Department took a progressive view of tribal history and federal interaction with the
Tribe in the Cowlitz Record of Decision (“ROD”), in contrast to a narrow view of tribal
history in the Final Determination Against Acknowledgment of the Juaneno Band.
• The Department should follow the policies and approach outlined in the Cowlitz ROD and
apply them to recognition cases.
II. TESTIMONY
Congress has recognized that “Indian tribes presently may be recognized by Act of
Congress; by the administrative procedures set forth in part 83 of the Code of Federal Regulations
denominated “Procedures for Establishing that an American Indian Group Exists as an Indian
Tribe;” or by a decision of a United States court.”3
In addition, tribes can organize under the half-
blood provision of the Indian Reorganization Act. Tribes that were mistakenly omitted from the
list of Indian Entities Recognized and Eligible to Receive Services from the United States Bureau
2
See Montoya v. United States, 180 U.S. 261, 36 Ct.Cl. 577, 21 S.Ct. 358, 45 L.Ed. 521 (1901).
3
FEDERALLY RECOGNIZED INDIAN TRIBE LIST ACT OF 1994, PL 103–454, November 2, 1994, 108 Stat
4791.

3. Page 3 of 8
of Indian Affairs can also be reaffirmed as federally recognized tribes. All of these methods are
valid ways to recognize or reaffirm tribes.
A. Congressional Recognition
Congress has the authority to recognize government-to-government relationships with
Indian tribes under the U.S. Constitution, primarily based on the treaty clause and the Indian
commerce clause. In a foundational case for Indian law, Worcester v. Georgia, the U.S. Supreme
Court states “our existing constitution…confers on congress the powers of war and peace; of
making treaties, and of regulating commerce with foreign nations, and among the several states,
and with the Indian tribes. These powers comprehend all that is required for the regulation of our
intercourse with Indians.”4
Congress historically recognized tribes treaties and through legislation.
Only Congress has the power to terminate the government-to-government relationship with a
tribe. The last tribe to be recognized through congressional legislation was the Shawnee Tribe of
Oklahoma in 2000 (Loyal Shawnee).5
Regrettably, the United States Senate filibuster process has
derailed the potential recognition of tribes in this session of Congress. Unfortunately, some
Senators believe only the Department of Interior, and not Congress, should acknowledge tribes.
B. Administrative Recognition
The executive branch has historically and continues to be heavily involved in federal
recognition. Some tribes were recognized through executive orders.6
In addition, the President
negotiated treaties, subject to ratification by the Senate.7
Authority for federal recognition was also implicitly delegated by Congress to the
executive branch. This authority flows from the President to the Secretary of the Interior to the
Bureau of Indian Affairs. The Department of Interior issued regulations, found at 25 C.F.R. Part
83, for the Federal Acknowledgment Process (FAP) in 1978 and revised them in 1994. While the
procedural process is clearly stated, the implementation of the acknowledgment process is widely
recognized as broken. The process is extremely lengthy and burdensome to the petitioners. Tribes
have to wait years and even decades for decisions on their petitions. The process leaves the
opportunity for inconsistent application of the criteria while also suffering from the problem of
applying a one-size-fits-all standard to tribes with widely varying histories and circumstances.
While a new federal commission on recognition could be desirable, little congressional support for
such a program exists. Given the likelihood that the current Office of Federal Acknowledgment
will continue, the best opportunity for qualified tribes to achieve recognition is through fair
application of the criteria.
The Indian Reorganization Act also allows tribes to organize under what is known as the
“half-blood provision.” “Any Indian tribe shall have the right to organize for its common welfare,
4
Worcester v. Georgia, 31 U.S. 515, 559 (1832) (emphasis in original).
5
P.L. 106-568 (Dec. 27, 2000).
6
California Valley Miwok Tribe v. United States, 515 F. 3d 1262, 1263 (D.C. Cir. 2008).
7
Felix S. Cohen, Cohen’s Handbook of Federal Indian Law 2005 edition.

4. Page 4 of 8
and may adopt an appropriate constitution and bylaws, and any amendments thereto.”8
This shall
become effective when ratified by the Tribe and approved by the Secretary. “The term “Indian” as
used in this Act shall include all persons of Indian descent who are members of any recognized
Indian tribe now under Federal jurisdiction, and all persons who are descendants of such members
who were, on June 1, 1934, residing within the present boundaries of any Indian reservation, and
shall further include all other persons of one-half or more Indian blood.”9
Another way a small set of tribes has been acknowledged is by administrative error
correction by the Department of Interior. This is for tribes whose government-to-government
relationship was never severed, but through administrative error the tribes did not appear on the
list of Indian Entities Recognized and Eligible to Receive Services from the United States Bureau
of Indian Affairs, periodically published in the Federal Register.10
These tribes were never
administratively terminated and their government-to-government relationship had not lapsed.
Rather than a new recognition, this is a reaffirmation of the government-to-government
relationship. Thus, a process similar to that under 25 C.F.R. Part 83 is not required. The statuses
of the Lower Lake Rancheria Koi Nation, the Ione Band of Miwok Indians, the King Salmon
Tribe, the Shoonaq’ Tribe of Kodiak, and most recently the Tejon Indian Tribe were appropriately
corrected this way.
In a unique situation involving Alaska Native Tribes, on October 21, 1993, the Department
issued its list of tribes in the United States eligible for services from the Department. The list
named the Alaska villages recognized under the Alaska Native Claims Settlement Act as tribes,
and specifically stated that they have “all the immunities and privileges available to other
federally acknowledged Indian tribes by virtue of their government-to-government relationship
with the United States as well as the responsibilities, powers, limitations and obligations of such
tribes.”11
The over 220 tribes acknowledged in that notice did not achieve recognition through the
Office of Federal Acknowledgment, which would have taken decades, but rather through the
Department’s interpretation of congressional statutes, policies, and directives, which collectively
affirm Alaska Native government sovereignty.
In another case, the Muwekma Tribe of California also sought to be reaffirmed to federal
recognition for many years. The Verona Band (that the Muwekma Tribe directly descends from)
was federally recognized and was not legally terminated, which the Department of Interior
acknowledged. The Muwekma Tribe first informed the Department of Interior that it would
petition for federal acknowledgment in 1989. The Tribe submitted a formal petition for
acknowledgment in 1995, with thousands of pages of supplemental materials. The petition was
evaluated under the modified federal acknowledgment regulations at 25 C.F.R. § 83.8. The
Department, notwithstanding a solid record of Muwekma’s history as a tribe, found that
Muwekma “failed to provide sufficient evidence to the Department that it ‘has been identified as
8
25 U.S.C.A. § 476
9
25 U.S.C.A. § 479
10
First published at 44 Fed. Reg. 7,235 (Feb. 6, 1979).
11
58 FR 54364-01(Oct. 21, 1993).

5. Page 5 of 8
an American Indian entity on a substantially continuous basis since’ 1927, when the Verona band
was last recognized by the federal government.”12
Muwekma requested that the Department reaffirm its status through administrative error
correction, as it had done with Lower Lake Rancheria Koi Nation and the Ione Band of Mission
Indians. The Department refused to do so, and Muwekma sued the Department. As a result of that
claim, the Court directed the Department to provide an explanation for why the Part 83 procedures
were waived for Lower Lake and Ione but not for Muwekma. If the Tribes were similarly situated,
they should have been granted the same waiver. Courts are granted limited review of agency
decisions, so the Court could only direct the Department to justify the difference in treatment,
rather than reviewing Muwekma’s evidence submitted to the Department itself and making its
own determination. The Department pointed to a pattern of federal dealings with Ione and Lower
Lake, which the Department did not believe it similarly had with Muwekma or Verona band after
1927. The Court found the Department’s explanation as to why Muwekma was treated differently
sufficient. The important distinction, in the view of the Department, was that the federal
government interacted with Lower Lake and Ione as tribes, and Muwekma’s evidence only
showed interaction with Indian individuals. Although Muwekma presented solid and verifiable
evidence, the Department interpreted the evidence only as relevant to individuals rather than the
tribe. The Court did, however, confirm the Department’s authority to waive regulations under 25
C.F.R. § 1.2, and spoke positively about the reaffirmation process.
C. Judicial Recognition
The courts have also been involved in federal recognition in different ways. In Worcester
v. Georgia, the U.S. Supreme Court affirmed the Cherokee Nation’s status as a federally
recognized tribe, based on treaties and Acts of Congress, in the context of federal authority over
Indian affairs as opposed to state authority: “The Cherokee nation, then, is a distinct community
occupying its own territory, with boundaries accurately described, in which the laws of Georgia
can have no force, and which the citizens of Georgia have no right to enter, but with the assent of
the Cherokees themselves, or in conformity with treaties, and with the acts of congress. The whole
intercourse between the United States and this nation, is, by our constitution and laws, vested in
the government of the United States.”13
There are also common law standards for recognition of Indian tribes. In Montoya14
and
Golden Hill,15
the Supreme Court and Second Circuit, respectively, considered whether to
recognize certain Indians as Tribes without waiting for recognition by the United States.16
The
U.S. Supreme Court defined an Indian Tribe in Montoya as “a body of Indians of the same or a
similar race, united in a community under one leadership or government, and inhabiting a
particular though sometimes ill-defined territory.”17
The Shinnecock Nation was a tribe
12
Muwekma Ohlone Tribe v. Salazar, No. 03-1231, at 5 n.3 (D.D.C. Sept. 28, 2011).
13
Worcester v. Georgia, 31 U.S. 515, 561 (1832)
14
See Montoya v. United States, 180 U.S. 261, 266, 36 Ct.Cl. 577, 21 S.Ct. 358, 359, 45 L.Ed. 521 (1901).
15
Golden Hill Paugusett Tribe of Indians v. Weicker, 39 F.3d 51 (2d Cir. 1994).
16
New York v. Shinnecock Indian Nation, No. 03-CV-3243 (D. N.Y. Nov. 7 2005).
17
Montoya, 180 U.S. 261, 266 (1901).

6. Page 6 of 8
recognized by a federal court using the Montoya standards: “The cases described above,
beginning with Montoya and continuing to the present, establish a federal common law standard
for determining tribal existence that the Shinnecock Indian Nation plainly satisfies.”18
Although
the Court found that the Shinnecock Nation met the common law standards for federal
recognition, the Nation later became engaged in an administrative recognition process under the
Department of Interior. The Department made a final determination on the Tribe’s petition in
2010.19
A group of California tribes were also restored judicially in Tillie Hardwick.20
Forty-one
tribes were terminated by the California Rancheria Act in 1958.21
The Act required that a
distribution plan be made for each tribe and other actions be taken, including the construction of
water delivery systems.. Upon compliance with these requirements, the tribes were to be
terminated. In 1979, distributees from thirty-four of the tribes sued the United States for violation
of the Rancheria Act for failing to satisfy the obligation of the Act and to inform the distributees
that they would no longer have access to federal programs and protections.22
The parties entered
into a Stipulation for Entry of Judgment in 1983, restoring federal recognition to seventeen of the
tribes. A similar court approved settlement, in Scotts Valley Band of Pomo v. U.S., restored other
tribes in 1992.23
Since then, other tribes in California terminated by the Rancheria Act have also
been restored by judicial stipulation.
D. Administrative Policy
The Department of Interior historically and currently lacks a consistent approach to
matters of federal recognition and how evidence showing recognition or federal jurisdiction
should be viewed. The Department has employed progressive standards in the Record of Decision
(“Cowlitz ROD”) for a trust acquisition and reservation proclamation for the Cowlitz Indian
Tribe24
and regressive standards in the Final Determination Against Acknowledgment of the
Juaneno Band of Mission Indians (“Juaneno Determination”).25
These decisions show an
inconsistent approach to how the government interprets federal/tribal interactions. In the Cowlitz
ROD the Department of Interior dealt with the question of whether the Tribe was under federal
jurisdiction, and in the Juaneno Determination, the Department evaluated whether the Juaneno
Band met the standards for recognition in 25 C.F.R. Part 83, however, a comparison of the two is
useful to show the Department’s varying approach to similar evidence.
18
New York v. Shinnecock Indian Nation, No. 03-CV-3243 (D. N.Y. Nov. 7 2005).
19
75 Fed. Reg. 34760 (June 18, 2010).
20
Tillie Hardwick, et al. v. United States of America, et al., No. C-79-1710 (N.D.Cal.).
21
Pub.L. 85-671 (72 Stat. 619)
22
Tillie Hardwick, et al. v. United States of America, et al., No. C-79-1710 (N.D.Cal.).
23
Scotts Valley v. United States (Final Judgment), No. C-86-3660-VRW (N.D. Cal. April 17, 1992).
24
United States Department of Interior, Record of Decision Trust Acquisition of, and Reservation Proclamation for
the 151.87-acre Cowlitz Parcel in Clark County, Washington, for the Cowlitz Indian Tribe (Dec. 2010) (“Cowlitz
ROD”).
25
Larry Echo Hawk, Assistant Secretary – Indian Affairs, Final Determination Against Acknowledgment of the
Juaneno Band of Mission Indians, Acjachemen Nation (Petitioner #84A) (March 15, 2011) (“Juaneno Final
Determination”).

7. Page 7 of 8
In Cowlitz, the Department evaluated the question of “under federal jurisdiction” in the
context of the Indian Reorganization Act with the goal of taking land into trust. The Department
interpreted the evidence needed for course of dealings and superintendence in a very broad
fashion. Support for federal superintendence and sovereign status was found in treaty negotiations
(even for unratified treaties) census records, BIA expenditures for tribe and individual Indians,
placement of Indian children in BIA schools, hiring of attorneys to protect land rights of
individual members of a tribe, supervision of allotment sales, funeral expenses for individual
members, protection of water rights and other trust assets.26
A federal attorney contract, according
to the opinion, demonstrates the Tribe did not lose jurisdictional status at that point. The Cowlitz
were federally acknowledged on February 14, 2000, and their acknowledgement was reaffirmed in
2002. So in the ROD, the Secretary assessed whether the Tribe was under federal jurisdiction in
1934 to determine if the IRA would apply. The attorney contracts were viewed as robust evidence
of federal jurisdiction in the Cowlitz ROD.
In Juaneno, the Department evaluated whether there were instances of third party
acknowledgement of the tribe under 25 C.F.R. § 83.7 for the purposes of federal recognition.
Juaneno, while claiming it also had attorney contracts, did not have a copy of the actual attorney
contracts. The Tribe claimed a letter from the Commissioner could be construed as an approval of
attorney contracts but that letter was not produced either. Notably, the Office of Federal
Acknowledgment (“OFA”) did not produce this document either, even though this is a
government record. OFA then dismissed this claim as self-identification. Although the Final
Determination notes that the evidence of attorney contracts was not evaluated because the actual
documents were not produced, it is further noted that “such correspondence merely repeats self-
identifications and is not considered identifications under this criteria.”27
In stark contrast, the
Cowlitz ROD states “This action to approve the Cowlitz Tribe's contract in 1932 supports a
finding that it was considered a tribe subject to the statutory requirement for Department
supervision of its attorney contracts, and thus ‘under federal jurisdiction.’” This is supported by a
1948 Solicitor's Opinion construing the 1946 Claims Act as allowing only claims if “political
recognition had been accorded to the particular Indian groups asserting them.”28
In the Cowlitz ROD, the Department used BIA activities for both the tribe and for
individual Indians to find “under federal jurisdiction” activity. Importantly, the Department also
said the federal government must find probative/affirmative evidence that a tribe was terminated
before it can conclude the tribe was not under federal jurisdiction. This correctly shifts the burden
to the Department to find such evidence of termination rather than placing the burden on the tribe.
This confusion in the Department’s approach leaves the Department open to challenges of
its decision-making, which is detrimental both to the Department and the Tribe. For example, the
Confederated Tribes of the Grand Ronde Community of Oregon sued the Department for its
decision to take land into trust for the Cowlitz Tribe. Grand Ronde’s motion for summary
judgment attacks the Secretary of the Department of the Interior on his explanation that the term
26
See Cowlitz ROD.
27
Juaneno Final Determination at 21.
28
U.S. Dept. of Interior, Sol. Op. No. M-35029 (Mar. 17, 1948).

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“recognized” has been used in various senses.29
The Department has a variety of tools to
recognize, reaffirm, or show that a tribe was under federal jurisdiction. The approach developed in
the Cowlitz ROD show an approach to characterizing government-to-government relationships
that better meets the evolving standards of federal/tribal interaction. This approach should be
consistent for all tribes, including those seeking recognition.
29
The Confederated Tribes of the Grand Ronde Community of Oregon v. Ken Salazar, No. 11-cv-00284, Plaintiff’s
Motion for Summary Judgment (June 20, 2012).